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1

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

RONALD WILSON,

NO. CIV. S-04-633 LKK/CMK

Plaintiff,

O R D E R

v.

 TO BE PUBLISHED

PIER 1 IMPORTS (US), INC;

and MELLON/PIER 1 PROPERTIES

LIMITED PARTNERSHIP I,

Defendants.

 /

Pending before the court are motions in three separate cases

arising under the Americans with Disabilities Act (“ADA”), 42

U.S.C.A. §§ 12101 et seq. In each case the plaintiffs allege that

the defendants violated the statute by virtue of maintaining 

physical barriers to the plaintiffs’ access to the defendants’

facilities. 

All of the defendants’ motions raise matters collateral to the

central question in any ADA case, i.e., have the defendants

violated the law. These motions rest upon a series of recent

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1 The motions address both legal issues applicable to many ADA

cases, and factual issues pertaining solely to the individual

lawsuits. The court will restrict its published opinions to the

generally applicable legal issues. Separate opinions will address

the motions in regard to the particular facts of each case. 

2 For the purposes of this motion, defendants do not dispute many

of the facts. Thus, except as noted, all of the facts described

above are undisputed. 

3 Plaintiff, inter alia, suffers from severe degenerative joint

disease in his neck, legs, shoulders, and spine, irregular

heartbeat, multi-joint arthritis, slight foot drop, and limited

range of motion of upper extremities. Wilson further suffers from

gout, deafness, and peripheral neuropathy with symptoms of ALS

(a.k.a. Lou Gehrig's Disease). Wilson Dec. at 4; Dep. at

45:22-23; 46:17-18, 23-25; 60:22; Pl.'s SUF 3. Wilson has no

control over his muscles, which are deteriorating faster than

doctors thought they would, and is forced to use either a

wheelchair or cane (or combination of both) when traveling in

public. Wilson Dec. at 6; Dep. at 46:17; 53:19-55:2; 55:25-56:7;

47:4-12; Pl.'s SUF 5. Wilson's condition will worsen over time.

Wilson Dec. at 7; Dep. at 48:19-21; Pl.'s SUF 6.

2

district court cases suggesting a variety of legal impediments to

the plaintiffs’ lawsuits. In a series of opinions, I address those

claims and conclude that this court is unable to follow those

cases.1

In this opinion the court addresses defendants' motion seeking

to have the plaintiff and his attorney declared vexatious

litigants, and thus subject to a so called pre-filing order. 

I.

FACTS2

Plaintiff, Wilson, is a 69-year-old male, who has been

disabled since 1993. Wilson Dec. in Supp. of Pl.'s Mot. for Summ.

J., (Wilson Dec. at 2); Dep. at 25:12-13; 33:20-21; 65:11-25; Pl.'s

SUF 1.3 During the past few years, he has visited the

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4 In declaring plaintiff Jared Molski, a physically disabled

individual who relies on a wheelchair for ambulation, a vexatious

litigant, Judge Rafeedie opined that Molski’s lawsuits were

tantamount to “systematic extortion, designed to harass and

intimidate business owners into agreeing to cash settlements.” 347

F.Supp.2d at 864. 

Judge Rafeedie also notes that he is troubled by the fact that

Molski, in conjunction with the ADA claim, sought monetary damages

under state law. He wrote that “Molski’s ADA claims are a sham,

used as a pretext to gain access to the federal courts, while he

pursues remedies that are available - sometimes exclusively - under

California law.” Id. at 867.

I am perplexed that a vexatious litigation finding is thought

to be supported by the fact that a plaintiff asserts supplemental

3

defendants’ store with his wife, and on several occasions purchased

various items.

 The Store was constructed and opened in 1989, and has not been

altered, as defined under the ADA and the California Building Code,

since it opened. 

Wilson claims that each of his visits to the store entailed

a struggle to overcome various physical barriers. Wilson Dec. at

11; Dep. at 131:9-13; Pl.'s SUF 10. 

II.

VEXATIOUS LITIGANT

A. STANDARDS

The impetus for defendants’ motion appears to be a relatively

recent opinion by Judge Rafeedie in the Central District of

California finding vexatious litigation and concluding a prefiling order was warranted by virtue of the plaintiff’s filing

of hundreds of Title III claims against restaurants and other

entities. Molski v. Mandarin Touch Restaurant, 347 F.Supp.2d 860

(C.D. Cal. 2004).4 Defendants urge this court to follow Judge

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jurisdiction, which is, after all, specifically provided for in

federal law. 28 U.S.C. § 1367.

4

Rafeedie's lead. I cannot do so. 

Judge Rafeedie applied the Second Circuit’s vexatious litigant

standards outlined in Saffir v. U.S. Lines, Inc., 792 F.2d 19, 24

(2d Cir. 1986). With all due respect, Judge Rafeedie, like the

undersigned, is bound by the Ninth Circuit, which has developed its

own standard. Accordingly, I turn to an explication of this

Circuit’s jurisprudence.

Under the All Writs Act, 28 U.S.C. § 1651(a), district courts

“have the inherent power to file restrictive pre-filing orders

against vexatious litigants with abusive and lengthy histories of

litigation.” Weissman v. Quail Lodge Inc., 179 F.3d 1194, 1197

(9th Cir. 1999); see also Fink v. Gomez, 239 F.3d 989 (9th Cir.

2001)(Court has inherent power to sanction willful or reckless

conduct when combined with either frivolousness, harassment, or

improper purpose). Such orders, however, “should rarely be filed.”

De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990); see also

Weissman, 179 F.3d at 1197.

In this Circuit, before declaring a litigant vexatious the

court must: (1) provide a plaintiff with an opportunity to oppose

entry of the order; (2) must indicate what court filings support

issuance of the order; (3) must find that the filings were

frivolous or harassing; and (4) the order must be narrowly

tailored. De Long, 912 F.2d at 1147-49; Benoza v. Target Personnel

Services, 1997 WL 446232 (N.D. Cal. Jul 29, 1997). The Ninth

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5

Circuit has explained that the “ordinary, contemporary, common

meaning” of “frivolous” is “of little weight or importance: having

no basis in law or fact.” Andrews v. King, 398 F.3d 1113, 1121

(9th Cir. 2005)(interpreting 28 U.S.C. § 1915(g))(quoting Webster's

Third New International Dictionary 913 (1993)). Similarly, Black's

Law Dictionary defines “frivolous” as: “Lacking a legal basis or

legal merit; not serious; not reasonably purposeful. Black's Law

Dictionary 677 (7th ed. 1999); see also Les Shockley Racing, Inc.

v. National Hot Rod Association, 884 F.2d 504, 510 (9th Cir.1989)

(defining frivolous for purposes of Rule 11 as lacking a

well-founded basis in fact and in law or a good faith argument).

B. DISCUSSION

Employing this Circuit’s procedure, and acknowledging the

Circuit’s restrictive definition of vexatious and its admonition

that such orders are rarely justified, see DeLong supra, I must

conclude that defendants have failed to make an adequate showing

that plaintiff's and his counsel's filings are frivolous. Before

explaining why, however, the court must take a short detour to

consider an issue not raised in either the Ninth Circuit cases or,

for that matter, in Molski.

1. Standing

The defendants in arguing their motion for summary judgment

seek to impose stringent standing principles in judging whether

plaintiffs in ADA cases may assert claims concerning barriers they

had not encountered during their visit to defendants' facility.

////

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5 Notably, during oral argument, the court asked defendants'

counsel whether he could maintain that all of plaintiff's claims

were meritless. He confessed that he could not do so.

6

Whether that position is well-taken requires considering the merits

of the motion, which will be considered in a subsequent opinion.

The court here notes, however, that defendants fail to apply any

rule of standing, much less a stringent one, to their own right to

litigate. As I now explain, that defect appears to suffice to deny

the motion.

It would hardly be proper for the defendants to bring this

vexatious litigant motion simply as a device to cast aspersions of

plaintiff’s character. Indeed, since they are already defendants

in the instant litigation, it would seem difficult to see what

advantage, other than casting aspersions on plaintiff and his

counsel, would be gained in bringing the motion in this case. 

Thus, it must be that defendants are motivated by righteous

indignation and fear that others will be subjected to vexatious

litigation. Even assuming some form of jus terti right, hardly a

given, defendants, like any litigant, must possess traditional

standing. In this context, that means that in order to bring the

motion the defendants must be subject to the injury complained of,

vexatious litigation. Put differently, their righteous indignation

must be bottomed on their own blameless conduct, and that they are

the subject to a frivolous lawsuit because they, in fact, have not

violated the ADA. They have failed to demonstrate complaince with

the statute.5

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6 Defendants provide evidence of 85 ADA cases filed by plaintiff.

7 Defendants argue that “[i]t defies belief that Plaintiff

suffered physical injury every single time he visited a public

accommodation that he later sued,” and that “the court cannot take

at face value Mr. Wilson’s claim that he needed to use the restroom

7

As the cross-motions for summary judgment demonstrate, serious

questions about whether the defendants have violated the law inform

the instant litigation. I conclude that defendants do not have

standing to bring the motion. As I now explain, however, even if

common standards of standing do not bar defendants' motion, they

have failed to make the requisite showing.

2. Plaintiff Ronald Wilson

In this Circuit, the court must find that plaintiff’s filings

are frivolous and harassing. It is undisputed that plaintiff has

been disabled since 1993 and that he has severe degenerative joint

disease which hinders his movement. Thus, he has satisfied the

first requisite for filing suit, that is, he is a member of the

class the statute was meant to protect. See ADA, §§ 2 et seq.; 42

U.S.C.A. §§ 12101 et seq. Moreover, as I noted above, substantial

questions remain as to whether defendants are in violation of law,

thus satisfying the second requisite for this suit. Nonetheless,

relying in large part on the fact that plaintiff is a frequent

litigator, defendants assert there are sufficient grounds to

declare him a vexatious litigant.6 Defendants' evidence that

plaintiff has filed boilerplate complaints and that only one of his

cases has proceeded to trial hardly suggests that he is filing his

suits in bad faith. Defs.’ Mot. at 18-20 7.

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at every public accommodation he sued.” Mot. at 19. While the

court cannot say with certainty that the plaintiff suffered

physical injury each time, that is not his claim. Rather, as the

court understands it, he claims that he has suffered the

discrimination against the handicapped resulting from physical

barriers which violate the ADA. As to using the bathroom, it is

hardly surprising, given the frequency of violation, that a

handicapped person seeking to vindicate the ADA would visit a

premise’s restroom. 

8 These purchases were documented with four receipts that he

received during his visits of September 8, 2003, March 13, 2004,

September 25, 2004, and January 30, 2005. Wilson Dec. at 8; Dep.

at 117:8-13; 123:17-19; Pl.'s SUF 7.

8

Plaintiff does not dispute that he has filed a large number

of cases but notes that “mere litigiousness is insufficient.” De

Long, 912 F.2d at 1147. The court “must examine the content of the

filings.” Id. The court has examined plaintiff’s filings,

including in the instant case, and finds that plaintiff’s ADA

claims are not frivolous.

In the case at bar, Wilson has tendered sufficient evidence

which convinces the court that he has visited defendants' premises

with his wife, and purchased various items.8 He avers that each

of his visits to the store entailed a struggle to overcome

accessible elements with the entrance door (hardware, threshold,

pressure, sweep periods), curb ramp, parking, and signage. Wilson

Dec. at 11; Dep. at 131:9-13; Pl.'s SUF 10. Plaintiff has

testified that he was injured in attempting to enter the door of

defendants' premises. Wilson Dec. at 12; Dep. at 144:19-145:19;

Pl.'s SUF 11. In the absence of a showing of duplicity, this

should put an end to defendants' contention. It is, however, not

the end of the story. 

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9

Relative to the other suits, plaintiff has filed a declaration

which details 43 different suits which he initiated. He is able

to provide the dates on which he visited the various premises, the

barriers he faced, as well as his interactions with the various

defendants he undertook in order to assist them in complying with

the ADA. Wilson Dec. at 4-26. Plaintiff explains that in every

suit filed by him, he writes a letter or contacts the facility by

phone to inform them of non-compliance. Id. at 2. Plaintiff

attaches correspondences with numerous defendants where the parties

discuss architectural barriers which he faced and which demonstrate

failure to comply with the ADA (see, e.g., Ex. F to Wilson Dec.,

letter from defendant to plaintiff responding to plaintiff’s

concerns about “level landing of Case C ramps”). In cases where

entities removed architectural barriers, plaintiff claims he did

not file suit. Id. at 3. 

From all that appears, the number of lawsuits plaintiff has

filed does not reflect that he is a vexatious litigant; rather, it

appears to reflect the failure of the defendants to comply with the

law. Accordingly, the court cannot find that plaintiff has filed

frivolous ADA lawsuits. 

3. Attorney Lynn Hubbard

As with plaintiff Ronald Wilson, the court cannot find that

plaintiff's counsel's filings lack a basis in fact or law

warranting a pre-filing order prohibiting vexatious litigation. 

Defendants urge this court to find Hubbard a vexatious

litigant due to the large number of cases he has filed. Although

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10

Hubbard does not dispute that he has filed a large number of cases

(approximately 1030 lawsuits in the last four years), the court

cannot conclude that these lawsuits were frivolous. Nor can the

court grant this motion based on numerosity alone since, as noted,

“mere litigiousness is insufficient.” De Long, 912 F.2d at 1147.

The court “must examine the content of the filings.” Id. 

Defendants argue that Hubbard’s conduct is “egregious and

vexatious,” in part because he files “boilerplate violations of the

ADA and state law.” Mot. at 6. Indeed, it appears that earlier

instance of Hubbard’s complaints are virtually identical. It is

unclear to this court, however, why uniform instances of misconduct

do not justify uniform pleadings. In any event, perhaps spurred

on by challenges such as the instant one, and judges unsympathetic

to his claims, it appears that counsel has recently begun to

attach pictures and other documents which seek to particularize the

pleadings and more clearly define the barriers which are the

subject of the suit.

Hubbard concedes that 99.8% of his suits settle before going

to trial. Defendants argue that this indicates that Hubbard has

filed lawsuits without good faith in prosecuting them. Although

Judge Rafeedie concluded that a high settlement rate is evidence

of a lack of belief in the merits, I cannot agree. A settlement

rate no more indicates a plaintiff’s lack of confidence than it

does a defendant's. A high settlement rate is a fact of modern

////

////

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9 See Allan Kanner and Tibor Nagy, Exploding the Blackmail Myth:

A New Perspective on Class Action Settlements, 57 BLRLR 681, 697

(2005) (seventy-three percent of certified class actions settle,

and seventy percent of all federal lawsuits settle).

10 It would be interesting to learn how many ADA cases defense

counsel have settled rather than tried in the last two years. 

Unfortunately, defense counsel does not favor the court with that

information.

11

litigation.9 Moreover, plaintiff's counsels avers that he has

taken four ADA cases to trial in the last two years, and that he

prevailed in two of those actions. Opp’n at 12.10 

Based on the evidence presented, defendants have not shown

that Hubbard is a vexatious litigant. Indeed, they have left the

court with the distinct fear that the motion is frivolous. Rather

than pursuing that issue, thus permitting the tail to wag the dog,

however, the court will proceed to the other motions pending in the

case. 

Defendants' motion seeking to have the plaintiff and his

attorney declared vexatious litigants is DENIED.

IT IS SO ORDERED.

DATED: January 27, 2006.

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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